On 11 August 2015, the Tribunal, at first instance, ordered the applicant before us, Paul Davis t/as Local Bloke Removals, to pay to the respondents, Tracy Drady and Patricia Burridge, the sum of $3,300 within 7 days.
On 5 November 2015, a Notice of Appeal was filed. It was out of time. As explained below, the notice identified no errors of law, but seeks leave to appeal, including by seeking to adduce evidence which, however, was available at the time of the original hearing, and it also seeks an extension of time. For the reasons which follow, we decline to grant an extension of time, and the appeal is otherwise dismissed.
[2]
Background
The applicant is a furniture/house removalist. By oral contract between an agent of the applicant and Ms Drady, dated 19 January 2015, it was agreed that the applicant would undertake a house removal for Ms Burridge, who is Ms Drady's grandmother, from Coffs Harbour to Orange, for the sum of $3,000 plus GST, as part of a "backload" on the agreed date for the removal of 17 February 2015.
The respondents contended that the removal van broke down, when it arrived not all of the goods to be moved fitted in the van, and subsequent attempts to deliver the goods were impeded because the caravan park manager, where Ms Burridge's mobile home was located, would not permit the applicant's truck into the caravan park, so that another removalist needed to be engaged to remove the remainder of the items.
Claims for damages to the goods moved, rent, accommodation costs and damages for stress and anxiety were dismissed by the Tribunal, and no cross-appeal is brought against that dismissal order. However, the claim for a refund of the contracted sum for the removal was successful, with the Tribunal reasoning as follows.
First, the Tribunal found that the Australian Consumer Law 2011 (ACL) was applicable. Relevantly s 60 of the ACL states:
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
The Tribunal found that the guarantee that the promised services would be rendered with due care and skill was breached, because:
1. The jurisdictional preconditions were met;
2. The applicant had chosen to provide a quote without undertaking investigations as to the volume of goods to be moved, or access restrictions at the location from which they were to be picked up: accordingly these matters were risks to be borne by the applicant;
3. The removal van did not have enough capacity to move all of the goods; and
4. The applicant failed to use due care and skill to assess the volume of goods to be moved and establish the access arrangements, resulting in a failure to deliver all of the goods as contracted, so that the respondents needed to retain other removalists to complete the promised services.
[3]
Extension of time - principles
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, an Appeal Panel which included the Tribunal's President stated the general principles applicable in [18]-[22] as follows:
18. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
19. An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
"The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion."
20. The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard.
21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
Here, we note the date of the decision below was 10 August 2015, the hearing having taken place on 19 June 2015. It therefore cannot be correct as stated in the Notice of Appeal, that the Notice of Decision was received on 17 July 2015. This must be a typographical error for 17 August. In the Notice of Appeal under "extension of time", the following is stated:
I needed to receive advise [sic] from my solicitor, contact the people who loaded and unloaded, gets [sic] photos of premises. Try and track down the removalists that supposedly [had] done the extra move.
The length of delay is not insignificant, as the Notice of Appeal should have been lodged by mid-September, and instead was lodged some six weeks later. It cannot be ignored. Legal advice should have been available within the time limit. The reasons for the delay do not otherwise involve a satisfactory explanation, as all of this evidence was available to be obtained and put forward at the original hearing of the matter. It is thus not 'new' evidence in that sense. As was said in Jackson at [27]:
The lack of material providing an adequate explanation of the delay weighs against granting an extension of time - see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at, for example, [103].
Although the length of delay is in the order of six weeks, the essentially unexplained delay places the onus squarely on the applicant to justify an extension of time.
As no particular prejudice is identified by the respondent to the appeal, we turn then to the applicant's prospect of success. We consider the applicant does not have a fairly arguable case.
First, no questions of law are identified as to which there is an appeal as of right: see s 80 of the Civil and Administrative Tribunal Act 2013 (the Act). Rather, leave is sought. The decision below was made in the Consumer and Commercial Division of the Tribunal. It was a "Division decision" within the meaning of cl 12(1), Schedule 4 of the Act: see the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. We must be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before the discretion to grant leave can be exercised. That clause provides:
12 Limitations on internal appeals against Division decisions
(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
These provisions were examined in Collins v Urban [2014] NSWCATAP 17 at [65]-[79], which also decided that even if the Appeal Panel is so satisfied, there is a discretion to grant leave, and at that second stage, further principles are to be considered, namely (at [84]):
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact…;
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,…
Turning to the grounds, first, the new evidence ground is not made out. There is simply no suggestion that the evidence now sought to be adduced was not reasonably available at the time of the hearing. It therefore does not meet this requirement.
Second, the decision was not against the weight of evidence. The meaning of that provision was explained in Collins v Urban at [77] as follows:
(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
The decision of the Tribunal, albeit briefly expressed, involved preferring the evidence of one of the applicants against the evidence of the respondent. The correct test, namely the balance of probabilities, was applied, in preferring the one over the other. This process of reasoning does not remotely meet the test of a decision being against the weight of evidence.
Third, we are not satisfied that the decision was not fair and equitable. To the contrary, this was a straightforward, rational, decision based upon evidence. In any event, there has been no miscarriage of justice.
We therefore decline to extend time in which to appeal and otherwise dismiss the appeal.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 12 April 2016